In The Long History Of Specious DMCA Claims, This Is Definitely One Of Them

from the I'm-only-Twitter-and-what-is-this dept

Another batch of DMCA notices has just cleared the, um, Clearinghouse over at Chilling Effects, at least according to my RSS feed.

[Yes. I'm subscribed to the Chilling Effects Clearinghouse feed. This is the sort of thing one does when writing for a site like this. Informing people that you write for an IP-focused tech blog tends to conjure up images of empty pizza boxes and MTN Dew cans interspersed between overclocked hardware and various i- and e-devices. This feisty mess is overseen by a rowdy group of youngish journo-school dropouts who, when not tossing darts at a glowering portrait of Chris Dodd, are firing off heated Tweets at a variety of IP maximalists and making donations to the EFF in the US Chamber of Commerce's name.

In reality, it's more like a rather tired man of indeterminate age scrolling through a list of DMCA notices that are distinguished solely by the name of filing entity. The MTN Dew part is still accurate. Although it is the slightly less EXTREME! diet version.]

This might be a language barrier issue (the DMCA notice lists Tokyo as the originating location). If it isn't, @ma31xte hasn't done a great job proving ownership. Not that it matters. This is the original tweet, sporting the puportedly original artwork. The infringing tweet listed in the DMCA notice has already been removed, although it's unclear if this happened before or after the DMCA notice arrived. (Twitter has no record of the tweet, suggesting the user deleted it. When Twitter handles it, the tweet is simply marked as "withheld.")

Trying to figure out whether any infringement did take place is rather entertaining, if ultimately fruitless. By Tweeter or Twitter, the (allegedly) infringing tweet has been scrubbed. This aggregation/social networking site seems to have archived the disputed tweet (although the picture itself has vanished) but the combination of Japanese, Russian and unfamiliar memes makes it nearly impossible to pick up any usable information. Even if Japanese were my native language, I doubt anything would be any cleared up, what with all the talk of clam juice and the ritual abuse of Unicode.

Now, this certainly isn't a case of blatant DMCA abuse. What it is though, is a byproduct of the system we have in place. Various platforms have incorporated DMCA reporting into their service, turning it into something anyone can use. And, as we see here, anyone does.

So, this is kind of funny and kind of sad and isn't anywhere in the vicinity of a legitimate takedown. The system has been streamlined for maximum accessibility. Why? Because every heavily-used service can't afford to not turn the DMCA process into a "New Infringement Found" Wizard that offers content removal with a few clicks. The people who pushed for the DMCA system to be implemented are the same people who think that everyone from the ISP to the web hosting company to the search engine should be preventing infringement by proactively determining whether uploaded content is legit. Because this task is impossible, the reporting system has been streamlined into a relatively painless process. (Although many complain [endlessly] that it's stillnot painless enough.)

As entertaining as this takedown notice is, it's still a minor indictment of the DMCA system. It's pretty clear that anyone can grab a random URL and stake a claim on a piece of content and start taking down duplicates located anywhere else. These notices are rarely challenged and the content is usually taken down by the hosting service before any response can be offered. The lines about perjury and its consequences give it the heft of a legal document but in reality, the repercussions of issuing a bogus takedown remain as ethereal as the bits and bytes that the DMCA notice is composed of. We can enjoy a hearty LOL at the "I MADE THIS" claim presented here, but it's obvious there's really only one party that takes these sorts of notices seriously. It's not the sender. It's not the recipient. It's the intermediary. Because they have the most at stake.

So blue, bob and the other trolls...
Here's why I and others hate copyright and the DMCA. Speech and being able to make speech are the cornerstones of a free and democratic society. If you are unable to make speech, you are not free and you are not living in a democratic society.
Here, we have trivialised the ability to delete speech and even worse, there is no punishment for the wrongful deletion of speech, such as when a DMCA notice is faulty.
In a sane universe, if you were a proponent of a certain position (e.g. pro abortion) and you wanted to silence the speech of those whom you deem your opponents (e.g. anti abortion), such a task would be difficult to the extreme...because you live in a free and democratic society, where the right to free speech is protected. However, we don't. We live in a world where you can be a proponent of a certain position, see your opponents are making speech, want it silenced and just need to yell "COPYRIGHT INFRINGEMENT!" and bam...it's done. Their speech is taken down.
Want to halt scientific and industrial progress, so as to protect your business model? Say, you're in the business of selling DVD's, and this new fangled communications technology called the Interwebz threatens to either force you out of business or to innovate? Well, if you're feeling lazy, you can just yell "COPYRIGHT!" and have all sorts of upstarts squashed. That way, you don't have to do the work of innovating and adapting to a changed environment...unlike the last time this happened and home video cassettes threatened your business model of showing movies in theatres (wait, what?)

So, blue, bob and the other trolls...
My challenge to you is this. In fact, this has always been my challenge to you and each and every day, you fail. Let's see if you can succeed. Convince me that copyright law as it is written today does not conflict with the right to free speech. That the vast amount of harm that occurs through its use and abuse is somehow justified by some tangible benefit to a small percentage of the population. Convince me that my loss of ownership rights and control over my own equipment should be borne in stride, that I shouldn't complain, simply so some people I will more than likely never meet can just sit on their asses and milk their already produced works from now til the end of time. Convince me that somehow these same people are unable to produce new works if copyright laws weren't on the books. Convince me that I and others like me should always be called thieves and criminals, and treated as if we're dangerous monsters, even when we produce fucking photographic evidence that we do play by the rules and pay (when we can) for content.

I'm not going to hold my breath though. Using simple logic, reasoning and prior history, will tell me that you will fail, and fail miserably.

I manage the YouTube channel for one of the largest global brands. We are routinely dinged for copyright infringement and have to spend considerable efforts producing license agreements or contracts to dispute these claims and return our channel to good standing.

As far as I can tell there is nothing to prevent a frustrated consumer or competitor from disabling our channel for weeks with several unsubstantiated claims.

Re:

Is the Youtube channel routinely shut down due to being accused multiple times, like the average person's channel would be? Or does Youtube (horror of horrors) allow you to actually dispute the accusation before being silenced, albeit temporarily?

"language barrier issue" -- I get the words here, but not a point.

So it's "ultimately fruitless." If you don't start with a piratey premise, one is not drawn ineluctably along by force of logic: you just keep waiting in vain for a point.

I keep giving Mike and Minions a good read, but it's often a unique anomaly like this -- after some dilatory off-topic attempt at personalizing -- and I can't see how it could possibly apply to the everyday good that copyright does for at least millions of people.

Sheerly as polemic or promotion, you're failing. I can't really even find a point to object to! It's just the usual mush.

the biggest problem with the DMCA is exactly what happened here. there is no punishment for bogus claims and bogus take down orders. there are never any checks done. this is exactly how it was meant to be! just as the entertainment industries wanted it and exactly how Congress wrote it! i mean, be honest, would Congress ever risk upsetting the 'golden goose'? absolutely no way!!

Re: Diet?

Re: Re: Re:

Disabled/shut down - same thing...and I notice your repeat comment leaves that line out.

Maybe I should be a little clearer. You say you are routinely dinged for copyright infringement. Does that mean you quickly get 3 accusations and then Youtube disables access to your channel so people cannot view your videos?

Re: "language barrier issue" -- I get the words here, but not a point.

You don't give "Mike and Minions" a good read. You've admitted before to never reading the articles and quite frequently, the comments you make reveal you at best rush through them without taking the time to use a little known skill called "reading comprehension".

Re: Re: Re:

1. i was going to ask similar to what rikuo did: that utube will give far more latitude to 'big' customers than they will joe sixpack...
in fact, you may not even *realize* you get some preferential treatment if you don't -in fact- get 'real' takedown notices to the extent that a nobody would...

2. while you point out that regular individuals *could* (and possibly occasionally *do*) cause unwarranted -if not 'illegal'- trouble for your channel, i am betting it is FAR MORE the case that 'big' companies, etc are the culprits in most takedowns... (not necessarily yours)

now, to some extent, that would 'make sense', but i think the system is set up so that there is -effectively- NO RECOURSE for joe nobody versus BigCo Inc, *EVEN IF* BigCo Inc issues bogus -if not 'illegal'- takedowns...

"Safe Harbors" in action

Remember, next time you try to talk about how helpful the DMCA's "Safe Harbors" are for the Internet, this is the Safe Harbor system. Safe Harbors are the DMCA takedown system, and the two cannot be treated as separate concepts.

Safe Harbors do not protect anyone from secondary liability; they create secondary liability and then require services to take oppressive steps to avoid it. And even when the services bend over backwards to comply with the abusive, immoral requirements of the DMCA, when they go out of their way to play by the rules, the rules do not protect them from being destroyed by angry competitors who want them gone. (See Megaupload, Veoh, etc.)

The only way to truly protect Internet services from secondary liability is to repeal the DMCA and establish that these services are instead covered under the aegis of Common Carrier doctrine. So can we please stop talking about how the Safe Harbor provision of the DMCA does something useful for the Internet?

Sabotage, anyone?

So what's to stop someone from creating an automated web crawler that detects all content hosted by these social media sites (Twitface Youbook, Redtube, etc.) and submits takedown notices for everything?

There's no punishment for a bogus takedown, yes?

Exploit the system to show the flaw in the system. Turn Tumblit into a text-only desert.

Re: Re: Re: Re:

I agree with what you are saying, but you are implying that only big companies issue invalid takedowns. The problem with invalid claims affects big companies and Joe Sixpack alike. And neither one has much recourse.

Re: Re: Diet?

Re: "Safe Harbors" in action

That's not entirely true. Prior to the DMCA, standing copyright law would have made it even easier to go after a service provider for the content supplied by their users. That' why safe harbors were, in fact, an improvement -- though a qualified one, and one that came bundled with a bunch of bad things.

In fact, this exact point is very relevant to the YouTube v. Viacom ruling that just came out, and on which we will have a post momentarily. In short, it's a victory for youtube -- and one of the key points is that Viacom's argument relied on a pre-DMCA safe harbor notion of establishing liability, drawn from earlier copyright law. The judge specifically notes this fact and rejects the argument for that reason, calling it "anachronistic"

Re: Re: "Safe Harbors" in action

That's not entirely true. Prior to the DMCA, standing copyright law would have made it even easier to go after a service provider for the content supplied by their users.

Not if they were able to successfully claim Common Carrier status, that they were doing nothing more than delivering information, like the Postal Service, and therefore could not be held liable for the content of the information delivered. The DMCA took that defense away.

And yes, it's true that given the choice, a lot of companies today would not like to claim Common Carrier status because of the requirement that comes with it to act as a common carrier, namely Verizon, Comcast, AT&T, etc. But that's the beauty of it; these are the companies which need reined in the most, because their refusal to act as a common carrier (also known as "net neutrality") is harming consumers and the Internet as a whole.

Replacing the DMCA safe harbors with Common Carrier doctrine would kill two birds with one stone. There's really no downside.

Re: Re: Re: "Safe Harbors" in action

That's just not true. We don't want the only online services to be those that can qualify for common carrier status -- that would be incredibly limiting.

You say there's "no downside"? I'm sorry, but I find that laughable. The "downside" of repealing DMCA safe harbors is obvious: virtually every popular internet service that exists, from Facebook to YouTube to Tumblr to Wordpress.com to Twitter to Dropbox, would be hit with massive lawsuits in which they would be found to be publishers with general knowledge of infringement, and thus liable, and the internet as we know it would be locked down in an instant.

Re: Re: Re: Re: "Safe Harbors" in action

The "downside" of repealing DMCA safe harbors is obvious: virtually every popular internet service that exists, from Facebook to YouTube to Tumblr to Wordpress.com to Twitter to Dropbox, would be hit with massive lawsuits in which they would be found to be common carriers whose business function is to transport data belonging to others, and thus immune from liability, and the internet as we know it would be set free from the tyranny of copyright abuse in an instant.